A Signal From the Supreme Court

by: Ryan Scott • October 25, 2026 • no comments

Defendant Hernandez-Coronado petitioned for review after his loss at the Court of Appeals, and this was how the petition presented the legal questions:

The issues on appeal include (1) whether the state must elect to proceed on specific instances of misconduct when a defendant is charged with multiple instances of misconduct that occurred during a period of similar, but not necessarily unlawful conduct (here, charges of forcible sexual conduct in an

ongoing relationship during which at least some of the sexual conduct was consensual); (2) whether the prosecutor’s arguments purporting to limit when the jury may find reasonable doubt and asking the jury to consider that the police failure to seek evidence was not the complainant’s fault were improper in the context of the continuing development of the Chitwood line of cases; (3) whether the application of mandatory minimum sentences designed to address recidivism to defendants without criminal history when said defendants receive multiple convictions at once results in a constitutionally disproportionate sentence.

The Supreme's denied review, but the press release announcing that decision notes the following:

(Flynn, C.J., and Duncan, DeHoog, and James, JJ., concurred in denying review but observed that the first issue presented in the petition raised an important legal issue that the Court should consider in an appropriate case)

I've never seen 4 justices "concur" in this manner. That suggests a level of interest that comes close to guarantee Supreme Court review when they get a case that presents the issue free of defects.

If you're wondering, we don't know for certain which of the issues raised in the petition constitutes "an important legal issue." The order denying review does not say.

That said, the most likely candidate is: "(1) whether the state must elect to proceed on specific instances of misconduct when a defendant is charged with multiple instances of misconduct that occurred during a period of similar, but not necessarily unlawful conduct (here, charges of forcible sexual conduct in an ongoing relationship during which at least some of the sexual conduct was consensual)."

Part of my reason for thinking so is based on what was the apparent reason the court did not want to take it. The COA opinion included the following language:

Defendant argues that, because the state “was prepared to (and did) present evidence of sexual contact multiple times over the several-month duration of a relationship, but only charged two counts of each crime associated with those contacts,” a pretrial election was required to permit defendant to prepare his defense. We disagree that the trial court was required to grant a motion for pretrial election on the first day of trial. To be sure, in circumstances where discovery reveals “more criminal acts than were charged in the indictment” and provides “no clear way for [a] defendant to investigate which occurrences the state would rely upon at trial,” denying a defendant’s motion for pretrial election would likely violate their “right to notice of the charges against him sufficient to prepare and present his defense.” Id. at 338 (internal quotation marks omitted).

But when a defendant makes a motion for pretrial election on the first day of trial—as defendant did here—it is generally within the trial court’s discretion to deny that motion because the timing of the motion defeats the purpose of the election. A motion for a pretrial election exists to give the defendant “notice of the specific criminal acts that the state would prosecute at trial, in time for defendant[s] to tailor [their] defense to those specific incidents.” Id. at 339 (inter-nal quotation marks omitted; brackets in original; emphasis added); see also State v. Antoine, 269 Or App 66, 79 n 8, 344 P3d 69, rev den, 357 Or 324 (2015) (explaining that “eluci-dation of the state’s precise theory at trial does not cure the problem of a lack of pre-trial notice, given that such notice is essential to pre-trial investigation, trial preparation, and litigation of evidentiary issues”). Thus, we conclude that the trial court did not abuse its discretion in denying defendant’s pretrial motion for election made on the first day of trial.

So in other words, when you've got this situation, file the motion to elect (and the demurrer) early!

There are a handful of cases with this issue under advisement with the Court of Appeals. A couple of those involve both a demurrer and a motion to elect.